People v. Abraham

Citation662 N.W.2d 836,256 Mich. App. 265
Decision Date29 May 2003
Docket NumberDocket No. 227938.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathaniel Jamar ABRAHAM, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and John S. Pallas, Assistant Prosecuting Attorney, for the people.

William Lanstat, Birmingham, for the defendant on appeal.

Before O'CONNELL, P.J., and FITZGERALD and MURRAY, JJ.

O'CONNELL, P.J.

Defendant Nathaniel Jamar Abraham appeals as of right his jury conviction and sentence for second-degree murder, M.C.L. § 750.317; see also M.C.L. § 712A.2d (statute allowing charging, trying, and sentencing juvenile as an adult). Defendant was sentenced to placement at the Maxey Boys Training School within the juvenile justice system until his twenty-first birthday. At the time of defendant's well-publicized trial, defendant was twelve years old. We affirm.

I. Facts and Proceedings

This is not the first time this case has been before us. In People v. Abraham, 234 Mich.App. 640, 599 N.W.2d 736 (1999), this Court affirmed the trial court's order denying defendant's motion to quash the information. In addition, this Court reversed the trial court's order granting defendant's motion to suppress evidence of his statements to the police. We set out the facts in our previous opinion as follows:

This case arises from the fatal shooting of Ronnie Green, and the nonfatal shooting of Michael Hudack, on October 29, 1997. Two days later the police questioned defendant about the shootings. According to the investigating officer, defendant first offered various innocent explanations of his role in the matter, then finally implicated himself in the shooting of Green. A probable cause hearing on the prosecution's petition requesting that defendant, then aged eleven years, be tried as an adult was held the following month. At the hearing, friends of defendant testified that defendant broke into a house and stole a .22-caliber rifle, practiced shooting at balloons and streetlights, stated an intention to shoot gang members who had been bothering him, and then boasted that he had shot someone. Defendant was bound over for trial on one count of first-degree premeditated murder, M.C.L. § 750.316(1) (a)..., one count of assault with intent to commit murder, M.C.L. § 750. 83 ..., and two counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b....

* * *

The police took defendant from school to the police station for questioning, stopping on the way to apprise defendant's mother of the matter. Defendant's mother joined defendant at the police station several minutes after defendant arrived with the police. Defendant and his mother were advised of defendant's [Miranda1 rights], in response to which they indicated that defendant did not wish to speak to an attorney and agreed to waive defendant's right to remain silent. Both signed a document stating that defendant waived his Miranda rights. [Abraham, supra at 643-644, 599 N.W.2d 736.]
II. Great Weight of the Evidence

The defense argues on appeal that a new trial was warranted because the prosecution failed to establish that defendant acted maliciously when he shot a gun at trees when people were nearby. We disagree.

As we held in People v. Simon, 174 Mich.App. 649, 653, 436 N.W.2d 695 (1989):

It is unclear whether defendant's argument addresses the sufficiency of the evidence or charges that the verdict was against the great weight of the evidence. Because defendant argued this issue both in a motion for a directed verdict and a motion for new trial, we will address it using the stricter standard applicable to reviewing a denial of a motion for new trial based on the verdict being against the great weight of the evidence.
The standard of review applicable to a denial of a motion for a new trial is whether the trial court abused its discretion. The trial court may grant a new trial if it finds the verdict was not in accordance with the evidence and that an injustice has been done. People v. Hampton, 407 Mich. 354, 373, 285 N.W.2d 284 (1979).... An appellate court will find an abuse of discretion only where the denial of the motion was "manifestly against the clear weight of the evidence." People v. Ross, 145 Mich.App. 483, 494, 378 N.W.2d 517 (1985).

See also People v. Stiller, 242 Mich.App. 38, 53, 617 N.W.2d 697 (2000).

A conviction for the offense of second-degree murder requires proof of (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse. People v. Goecke, 457 Mich. 442, 463-464, 579 N.W.2d 868 (1998). "Second-degree murder is a general intent crime, which mandates proof that the killing was done with an intent to kill, an intent to inflict great bodily harm, or an intent to create a very high risk of death with the knowledge that the act probably will cause death or great bodily harm." People v. Herndon, 246 Mich.App. 371, 386, 633 N.W.2d 376 (2001) (quotation omitted). This concept is also known as malice. Stiller, supra at 43, 617 N.W.2d 697.

The defense specifically contends that because defendant was developmentally, mentally, and emotionally impaired, he could not have had "wanton and wilful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm." Herndon, supra at 386, 633 N.W.2d 376. Evidence was presented at trial that defendant announced he was going to shoot "someone" before the shooting occurred and told people about it afterward. The general intent to kill need not be directed at an identified individual or the eventual victim. See Abraham, supra at 658, 599 N.W.2d 736, citing People v. Lawton, 196 Mich.App. 341, 350-351, 492 N.W.2d 810 (1992); see also People v. Plummer, 229 Mich.App. 293, 304-305 & n. 2, 581 N.W.2d 753 (1998) (the doctrine of transferred intent permits culpability for murder where the defendant intended to shoot someone other than actual victim). Clinical child psychologist Dr. Lynne Schwartz, who personally examined defendant, indicated that defendant stated that he was fearful that he might hit someone when shooting at trees. This testimony qualifies as showing that defendant had the "intent to create a very high risk of death with the knowledge that the act probably will cause death or great bodily harm," Herndon, supraat 386, 633 N.W.2d 376. It was not the place of the trial court to supersede the jury's credibility judgment believing those witnesses over defendant's psychological experts. People v. Elkhoja, 251 Mich.App. 417, 446, 447, 651 N.W.2d 408 (2002), quoting People v. Lemmon, 456 Mich. 625, 642-643, 647, 576 N.W.2d 129 (1998). Moreover, circumstantial and inferential evidence is admissible at trial. People v. Carines, 460 Mich. 750, 757, 597 N.W.2d 130 (1999); Abraham, supraat 658, 599 N.W.2d 736. Therefore, the trial court did not abuse its discretion in denying defendant's motion for a new trial in light of the great weight of the evidence.2 See Simon, supra.

III. Severance of the Charges

Defendant argues that the trial court improperly denied him a fair trial by failing to sever the charges of first-degree murder,3 M.C.L. § 750.316, and assault with intent to commit murder, M.C.L. § 750.83. We disagree.

Generally, the interpretation of a court rule is a question reviewed de novo. People v. Petit, 466 Mich. 624, 627, 648 N.W.2d 193 (2002). MCR 6.120 provides in pertinent part:

(B) Right of Severance; Unrelated Offenses. On the defendant's motion, the court must sever unrelated offenses for separate trials. For purposes of this rule, two offenses are related if they are based on
(1) the same conduct, or
(2) a series of connected acts or acts constituting part of a single scheme or plan.

MCR 6.120(B) is a codification of our Supreme Court's decision in People v. Tobey, 401 Mich. 141, 153, 257 N.W.2d 537 (1977). In Tobey, our Supreme Court held that where "offenses are joined solely because they are of the same or similar character, the defendant shall have a right to severance of the offenses." Id. at 151, 257 N.W.2d 537; see also People v. Daughenbaugh, 193 Mich.App. 506, 509-510, 484 N.W.2d 690 (1992), mod in part on other grounds 441 Mich. 867, 490 N.W.2d 886 (1992).

Severance was not mandatory in the present case because the shootings occurred within a couple of hours of each other in the same neighborhood, with the same weapon, and were part of a set of events interspersed with target shooting at various outdoor objects. Further, the same witnesses testified to a single state of mind applicable to both offenses. In contrast, the two offenses that were severed in Tobey, supra at 144, 257 N.W.2d 537, arose out of events that occurred twelve days apart. In Daughenbaugh, supra at 510, 484 N.W.2d 690, the offenses occurred thirteen days apart. Thus, because the two incidents in the present case were "related" under MCR 6.120(B), severance was not mandatory.4

IV. Prosecutorial Misconduct

Defendant next claims that he was denied a fair trial by several instances of prosecutorial misconduct. We disagree.

Generally, a claim of prosecutorial misconduct is a constitutional issue reviewed de novo. People v. Pfaffle, 246 Mich.App. 282, 288, 632 N.W.2d 162 (2001). The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial (i.e., whether prejudice resulted). People v. Watson, 245 Mich.App. 572, 586, 629 N.W.2d 411 (2001). Prosecutorial-misconduct issues are decided case by case, and the reviewing court must examine the pertinentportion of the record and evaluate a prosecutor's remarks in context. Id. For example, a prosecutor may not urge the jurors to convict the defendant as part of their civic duty....

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